Dr. Sumith Sivanand v. SNDP Sakha No.432; Sree Narayanapuram Subrahmanya Swami Temple Committee; President, SNDP Sakha No.432; and others (OP(C) No. 659 of 2020)

_**OP(C).659/2020**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 OP(C) NO. 659 OF 2020** **(ORDER DATED 18.2.2020 IN I.A.NO.1/2020 IN O.S.NO.243/2012 OF THE** **SUB COURT, KOLLAM)** ## **PETITIONER/S:** DR. DR.SUMITH SIVANAND, AGED 42 YEARS S/O.LATE K.SIVANANDAN, SREE NAGAR, ULLIRUPIL, KADAPPAKADA, KOLLAM - 691 008. BY ADVS. KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE ## **RESPONDENT/S:** 1 S.N.D.P SAKHA NO.432, ASRAMAM, KOLLAM - 691 002, REPRESENTED BY ITS SECRETARY. 2 SREE NARAYANAPURAM SUBRAHMANYA SWAMI TEMPLE COMMITTEE, ASRAMAM, KOLLAM EAST VILLAGE, PIN - 691 002, REPRESENTED BY ITS SECRETARY. 3 PRESIDENT, S.N.D.P.SAKHA NO.432, ASRAMAM, KOLLAM - 691 002. 4 AJANTHA KUMAR, BUSINESS, RESIDING AT ANIPPALLIL, ASRAMAM, KOLLAM EAST, KOLLAM - 691 002. 5 DEEPAK, SECRETARY, S.N.D.P.SAKHA NO.432, ASRAMAM, KOLLAM - 691 002. 6 D.PRABHA, S/O.DAMODARAN, RESIDING AT ROHINI, RESIDENCY NAGAR - _**OP(C).659/2020**_ 2 67, ASRAMAM CHERRY, KOLLAM EAST VILLAGE, KOLLAM - 691 002. 7 VINOD, BUSINESS, RESIDING AT AMBADY, SREE NAGAR - 64, ASRAMAM, KOLLAM EAST VILLAGE, KOLLAM - 691 002. 8 KUNJUMON, AGED ABOUT 58 YEARS, JAGADA FOODS PRODUCTS, KADAPPAKKADA, KOLLAM EAST VILLAGE, KOLLAM - 691 002. 9 KALADHARAN, RESIDENCY NAGAR - 138, ASRAMAM, KOLLAM EAST VILLAGE, KOLLAM - 691 002. 10 HARI, RESIDENCY NAGAR 139, ASRAMAM, KOLLAM EAST VILLAGE, KOLLAM - 691 002. BY ADV SRI.S.SREEKUMAR (KOLLAM) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**OP(C).659/2020**_ 3 ## **V.G.ARUN, J.** ## **----------------------------------------------O.P(C).No. 659 of 2020** ## **----------------------------------------------Dated this the 29[th] day of September, 2021** ## **JUDGMENT** The petitioner is the additional 2nd plaintiff in O.S.No.243 of 2012 on the files of the Subordinate Judge's Court, Kollam. The suit was filed by the petitioner's father and upon his death, the petitioner was impleaded. The prayers in the suit are for a decree declaring the plaintiff’s easement right over the motorable road described as C schedule and for a decree of mandatory injunction directing defendants 1 to 8 to demolish and remove D schedule wall constructed in C schedule road and ancillary reliefs. The essential facts are as under; The plaintiff purchased plaint A schedule property having an extent of 7 Ares 28 sq.mtrs comprised in Re-sy.No.40 in Block No.68 of Kollam East Village in a public auction conducted by the Indian Bank under the provisions of the SARFAESI Act. The adjoining property on the north (B schedule) is owned by the 1st defendant SNDP Sakha. Both A and B scheduled properties originally belonged to one Sundareswaran. Plaint B schedule property was bequeathed to the SNDP Sakha by Sundareswaran and plaint A schedule was mortgaged by him with the Indian Bank for availing a loan. Plaint C _**OP(C).659/2020**_ 4 schedule road starting from the public road and passing through B schedule property was maintained by Sundareswaran to reach A schedule property and his other properties, lying on the eastern and southern sides of A schedule. Plaint C schedule road is the only way for ingress and egress to A schedule. Sundareswaran committed default in repayment of the loan and plaint A schedule property was brought to sale. The plaintiff purchased the property in auction. The defendants, with the objective of obstructing the plaintiff from reaching A schedule, constructed D schedule wall in C schedule road. Hence, the suit was filed by the original plaintiff. After impleadment as the additional 2[nd] plaintiff, the petitioner filed Exhibit P2 application for amendment, seeking to make certain alterations to the description of C schedule. The application was opposed by the defendants. By Exhibit P4 order, the court below dismissed the application. Aggrieved, this original petition is filed. 2. Heard Smt.Maitreyi Hegde, learned counsel for the petitioner and Sri.S.Sreekumar (Kollam), learned counsel for the respondents. 3. Learned counsel for the petitioner contended that the impugned order is bad for absence of reasons and the findings in the order are factually incorrect and legally unsustainable. It is contended that the amendment does not in any manner alter the nature of the suit or cause prejudice to the defendants. According to _**OP(C).659/2020**_ 5 the learned counsel, the finding in the impugned order that the attempt of the petitioner is to introduce a new case as to the lie of the disputed way is without basis. It is submitted that, except correcting certain mistakes with respect to the identity of C schedule way, nothing further is being brought out through the amendment. Reference is made to the decisions of this Court and of the High Court of Madras to contend that amendments in relation to the description of the scheduled property does not have the effect of introducing a new case. Assailing the finding of the trial court that the amendment is highly belated it is contended that the trial court failed to understand the objective, the scope and ambit of Order VI Rule 17 CPC, as also the settled legal position that applications for amendment should be construed liberally. 4. Learned counsel for the respondent supported the impugned order by contending that the amendment application was rejected for valid reasons and on being satisfied that the attempt of the petitioner was to introduce a new case and to claim easement over the newly described way. Reliance is placed on the decision in _**Subramonian R.D. v. C.B.Sukumara Kurup**_ [ILR 2019 3 Ker. 351] to contend that introduction of a new cause of action and new relief by incorporating a new schedule by way of an amendment would not fall under the ambit of Order VI Rule 17 CPC. It is further _**OP(C).659/2020**_ 6 contended that the attempt of the petitioner is to introduce a time barred relief. In support of the contention, reliance is placed on Section 15 of the Easements Act and Section 25 of the Limitation Act. 5. Having heard the learned counsel and having carefully perused the plaint and the amendment application, I am unable to accept the finding of the trial court that the attempt of the petitioner is to introduce a new case. The apprehension of the respondent that the attempt is to set up an entirely new way is also misplaced. By the amendment, the petitioner is only seeking to correct certain mistakes in the description of C schedule. As such, the respondents will not be put to any prejudice by the amendment being allowed. The decision in _**Subramonian R.D**_ was rendered on an entirely different set of facts and hence, cannot be made applicable to the case at hand, inasmuch as the claim therein was of easement by prescription, whereas the petitioner's case is one of easement by necessity. For the same reason Section 15 of the Easement Act and Section 25 of the Limitation Act are also not attracted. In _**Revajeetu Builders & Developers v. Narayanaswamy & Sons**_ [(2009) 10 SCC 84], the Honourable Supreme Court laid down the following basic principles to be borne in mind while considering an application for amendment; _**OP(C).659/2020**_ 7 “ _Factors to be taken into consideration while dealing with applications for amendments_ _63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:_ _(1) whether the amendment sought is imperative for proper and effective adjudication of the case;_ _(2) whether the application for amendment is bona fide or mala fide;_ _(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;_ _(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;_ _(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and_ _(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.”_ Applying the above principles to the case at hand, I have no doubt that the amendment application is liable to be allowed. In the result, the original petition is allowed. Exhibit P4 order is set aside. I.A.No.1 of 2020 in O.S.No.243 of 2012 of the Subordinate _**OP(C).659/2020**_ 8 Judge’s Court, Kollam will stand allowed. The petitioner shall carry out the amendment within two weeks of receipt of a copy of this judgment. The suit being of the year 2012, the court below shall take earnest efforts to dispose the suit at the earliest. **Sd/V.G.ARUN, JUDGE** _vgs_ _**OP(C).659/2020**_ 9 ## **APPENDIX OF OP(C) 659/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.243/2012 BEFORE THE SUB COURT, KOLLAM. EXHIBIT P2 TRUE COPY OF THE I.A.NO.1/2020 WAS FILED ALONG WITH THE AFFIDAVIT. EXHIBIT P3 TRUE COPY OF THE OBJECTION TO THE I.A.1/2020 IN O.S.NO.243/2012. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 18/02/2020 IN I.A.NO.1/2020 IN O.S.NO.243/2012.